Trump’s ‘War With the Media’ Makes Independent Courts More Necessary Than Ever

Trump’s ‘War With the Media’ Makes Independent Courts More Necessary Than Ever

April 3, 2017

President Trump’s threats to “open up” libel laws have global implications for freedom of the media across the globe, especially in Africa. We, a media lawyer from London, an international human rights lawyer, and a human rights lawyer from Uganda, have joined forces to address this issue.

In our piece, we argue that democracies need independent courts more than ever, as was demonstrated recently by the Kenyan courts that declared criminal libel laws unconstitutional. This, of course, is also currently being showcased by the U.S. courts taking a stand against President Trump’s efforts to impose a travel ban on refugees and travelers from some majority-Muslim nations.

One problem with Trump’s rhetoric about “opening up” libel laws is that in many countries, such laws carry criminal sanctions ranging from heavy fines to imprisonment. These criminal laws are then used by those with political power to threaten and stifle the critical media. This is of particular concern in young or modern democracies, where the media do not benefit from the same protections as afforded in the United States. As the “leader of the free world,” Trump’s constant denigration of the media lends worrying credence to the abuse and promulgation of these laws and emboldens leaders in other countries to crack down on the press. In fact, as Trump was threatening to bring in tougher libel laws in the United States, the Tanzanian and Maldivian parliaments were drafting legislation that would further strengthen their own criminal libel laws. It is then left to the courts to defend the rights of the press in the face of this dangerous offensive against the media.

In his decision, the high court judge ruled Kenya’s criminal libel laws unconstitutional and found that using them to protect personal reputation was “unnecessary” and “disproportionate.” The decision adopts many of the conclusions reached by the Constitutional Court of Zimbabwe when it ruled criminal libel laws unconstitutional over two years ago. One of the observations of both these courts on the chilling consequences of prosecuting individuals every time someone claims they were “defamed” by the press is worth repeating:

“It is inconceivable that the citizens, the media, and civil societies could perform investigative and informative functions without defaming one person or another.”

This is an observation that President Trump might want to take heed of.

With journalism and independent media increasingly under threat from those with political clout, and the continued existence of criminal libel laws in a majority of countries, courts play an ever more vital role in protecting press freedom. Given recent events in the United States, societies need courts to reject politicians’ efforts to penalize the media for being “negative,” “horrible,” or “critical”—for that is part of their function.

Jonathan McCully is a legal officer with the Media Legal Defence Initiative. Nani Jansen Reventlow is a human rights lawyer with Doughty Street Chambers in London and a fellow with the Berkman Klein Center for Internet & Society at Harvard University. Catherine Anite is a human rights lawyer from Uganda.